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FRCP Rule 25 Allows for Extension of Time to Substitute Party Upon Death

by David Reutter

The Eleventh Circuit Court of Appeals has reversed a Florida federal district court’s order denying a motion to reopen a case and substitute parties due to the death of the original plaintiff. The district court erred in finding it could not extend the 90-day time period for substitution set forth in Fed.R.Civ.P. 25.

The suit was initially filed in 2016 by Gustavo Adolfo Lizarazo, who was arrested on June 8, 2012. He alleged that while being detained at a jail in Miami-Dade County, multiple officers “repeatedly kicked, struck and punched him in the face and abdomen,” resulting in a fractured right orbital socket and exploded orbital floor.

Lizarazo died on November 17, 2016, and his attorney filed a Joint Motion for Stay of Proceedings due to his death. Lizarazo’s father, Gustavo Antonio Lizarazo, was served by the defendants in anticipation that he would be appointed the personal representative of his son’s estate.

The district court entered an order on December 29, 2016 that granted a 90-day stay; it required Lizarazo’s attorney to file reports every month on the status of the probate proceedings. The court also administratively closed the case and said it would be reopened “if a proper motion is made within 90 days hereof,” which was by March 29, 2017.

Counsel filed the requested reports, noting the difficulty in obtaining a death certificate and delays in scheduling a hearing with the probate court. The defendants opposed a motion to extend the stay by seven days; on March 28, Lizarazo’s attorney filed a motion to reopen the case, and letters of administration from probate court were filed a week later.

The district court subsequently denied the motions to stay and to reopen the case and substitute the senior Lizarazo as the plaintiff. It said the case must be dismissed under Rule 25, which it held required the substitution to be filed within 90 days of notification of death of the plaintiff, which was by February 29, 2016 in this case. It also found the delay was not excusable neglect.

In late December 2017, the Eleventh Circuit Court of Appeals held the district court’s interpretation of Rule 25 was erroneous because it applied an incorrect legal standard. The appellate court wrote the rule was amended in 1963 to change an inflexible two-year deadline to 90 days. It noted the Advisory Committee notes “explain that courts have the discretion to extend the ninety-day deadline” under Rule 6, which was concurrently amended to eliminate the prohibition on extending Rule 25 deadlines.

As such, the district court had discretion to extend the 90-day period. On remand, the lower court was instructed to determine if its initial stay effectively extended the Rule 25 deadline. If there was no extension, it must determine if the delay was the result of excusable neglect. The case was reversed and remanded. See: Lizarazo v. Miami-Dade Corrections and Rehabilitation, Dept., 878 F.3d 1008 (11th Cir. 2017). 


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Related legal case

Lizarazo v. Miami-Dade Corrections and Rehabilitation Dept.